Federal Bribery: United States v. Hamilton

September 2022

Federal Bribery: “Quid needs Quo,” the Law of Entrapment, and the Rule of Lenity

Update: Since this article was written, there have been newer developments in the law. For more on that, you can read our analysis of Snyder v. United States.

————————————-

To view a pdf version of this article, please click here.

In United States v. Hamilton,[1] the Fifth Circuit recently concluded that “bribery concerning a local government receiving federal benefits,” under 18 U.S.C. § 666, requires a quid pro quo, not mere gratuities.  The court vacated the defendant’s convictions because the jury had been instructed to the contrary.

I.           The Hamilton Decision

The facts.  Ruel Hamilton is a Dallas real-estate developer known for his involvement in local politics.  This prosecution arose from his monetary donations to a non-profit owned and operated by the close friend of a Dallas City Council member.  Hamilton also donated to city-council candidates the councilmember favored, and Hamilton gave the councilmember cash to help pay for those candidates’ campaign workers.  In 2015, Hamilton was attempting to secure tax credits for one of his real-estate ventures, and the Dallas City Council would be voting on which projects to recommend for those credits.  The councilmember in question advocated for Hamilton’s project to be included on the recommended list, and he was eventually recommended.

Years later, Hamilton contacted another member of the city council for help with a different issue.  That councilmember notified the FBI, who recorded a future meeting between him and Hamilton.  At the end of that meeting, Hamilton said, “if there is anything that I can help you with, I mean, I hope you feel like you can reach out.”   In response, the councilmember asked Hamilton for $6,200 on the spot; the councilmember emphasized the money was not for his campaign and would simply help him “pay for [his] mama.”  Hamilton obliged and wrote him a check.

Federal prosecutors charged Hamilton with four bribery crimes.  At trial, the district court instructed the jury that the Government did not need to prove either a quid pro quo exchange or any “official act” by the councilmembers.  Ultimately, the jury convicted Hamilton of two bribery charges and one count of conspiring to commit bribery.

The decision.  The Fifth Circuit reversed Hamilton’s convictions because it determined that federal bribery under 18 U.S.C. § 666 “does, in fact, require a quo; a quid alone will not suffice.”  The district court’s jury instruction was, therefore, incorrect.  The Fifth Circuit recognized a circuit split: the First Circuit has held that “gratuities are not criminalized under § 666,” but the Second, Sixth, Seventh, Eighth, and Eleventh Circuits have all held that the statute covers both bribery and illegal gratuities.  In this case, the Fifth Circuit joined the First by holding that § 666 covers only quid pro quo bribery.

The court also noted, as a binding alternative holding, that the rule of lenity would require it to resolve any doubt in Hamilton’s favor.  For those reasons, the court vacated Hamilton’s convictions.

In dicta, the court indicated that “a hoard of constitutional problems” would lurk “just beneath the surface” of § 666 if it were to receive a broad interpretation.  Such an expansive view would raise concerns regarding the First Amendment, federalism, and due process.  The court did not address those concerns here — choosing instead to give the statute a narrow reading — but it flagged them nonetheless.

The court also identified a final issue: Hamilton was entitled to a jury instruction on entrapment because he had made a prima facie showing that (1) he lacked any predisposition to bribe the second councilmember whom the FBI used to solicit a $6,200 check from Hamilton, and (2) the Government was involved in the operation beyond merely making the bribery opportunity available to Hamilton.  The court would have vacated one of Hamilton’s convictions on that basis alone, regardless of the quid pro quo issue.

II.        Lessons from Hamilton

In Hamilton, we discern at least four lessons.  First, bribery under 18 U.S.C. § 666 requires proof of a quid pro quo exchange; it does not criminalize mere gratuities.[2]  Second, the Fifth Circuit remains willing, on occasion, to apply the rule of lenity in favor of criminal defendants when there is a “reasonable doubt” about the meaning of a federal statute.[3]  Third, federal statutes may be subject to a variety of constitutional challenges, including on First Amendment and due-process grounds.  Finally, a district court’s failure to give an entrapment defense may be reversible error; to preserve that issue, the defendant must (1) make a prima facie showing that he lacked predisposition to commit the crime until the Government persuaded him, and (2) request a jury instruction on that basis.

Looking ahead, Hamilton reminds us that detailed statutory interpretation can be the key to victory.  The Fifth Circuit vacated these bribery convictions based on a close reading of certain textual phrases, a review of legislative history, and comparisons to another similar federal statute.  Future defendants should also raise a myriad of constitutional and lenity-based arguments — the Fifth Circuit appears willing to rule in defendants’ favor on those grounds.

[1] --- F.4th ---, No. 21-11157 (5th Cir. Aug. 23, 2022).

[2] One court has already granted bond pending appeal based on Hamilton.  United States v. Jordan, 4:18-CR-087 (E.D. Tex. Sep. 16, 2022).  Like Hamilton, those defendants were convicted for bribery by a jury that was not instructed that it must find a quid pro quo to convict.  After Hamilton was issued, the defendants “presented close questions that the Fifth Circuit could very well decide in their favor,” so the court granted them bond pending appeal.

[3] The court’s footnote 2 contains a string cite of authorities in support of the rule of lenity, including Justice Gorsuch’s statement that “any reasonable doubt about the application of a penal law must be resolved in favor of liberty.”

KHALIL & LAKE is a white-collar litigation boutique focusing on federal criminal law, appeals, and complex investigations in a variety of business sectors. If you have any questions about these issues, or if you would like a copy of any materials mentioned here, please let us know.